Russell v. United States

PETITIONER:Norton Anthony Russell
RESPONDENT:United States
LOCATION:U.S. District Court for the District of Columbia

DOCKET NO.: 8
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 369 US 749 (1962)
ARGUED: Dec 06, 1961 / Dec 07, 1961 / Dec 11, 1961 / Dec 12, 1961
DECIDED: May 21, 1962
GRANTED: Jun 19, 1961

ADVOCATES:
Bruce J. Terris – for the respondent in 9
Frank J. Donner – for the petitioner in 128
Gerhard P. Van Arkel – for the petitioner in 10
Harry I. Rand – for the petitioner in 11
J. William Doolittle, Jr. – for the respondent in 10, 11, and 12
Joseph A. Fanelli – for the petitioner in 8
Joseph L. Rauh, Jr. – for the petitioner in 9
Kevin T. Maroney – for the respondent in 8 and 128
Leonard B. Boudin – for the petitioner in 12

Facts of the case

Six individuals were indicted and convicted for refusing to answer pertinent questions before a grand jury. Each of the individuals moved to squash the conviction because they were not told what the subject of the inquiry was, so had no basis for determining what questions were pertinent. The U.S. Court of Appeals for the District of Columbia affirmed the convictions.

Question

Does a grand jury have to identify the subject of their inquiry when indicting an individual for refusing to answer pertinent questions?

Earl Warren:

Number 10, Alden Whitman versus United States.

Mr. Van Arkel.

Gerhard P. Van Arkel:

Mr. Chief Justice, may it please the Court.

The petitioner was indicted on 19 counts for declining to answer certain questions of the Senate Internal Subcommittee put to him on January 6, 1956.

He was tried without a jury.

He was convicted on all counts.

He was sentenced to a term of 6 months suspended prison sentence and a fine of $500.00.

On appeal, the Court of Appeals for the District of Columbia affirmed the conviction and Your Honors granted certiorari.

At the time of his appearance before the subcommittee on internal security, the petitioner appropriately raised questions concerning the authority of the subcommittee and concerning the pertinency of the questions which were asked him, objections which were renewed throughout the course of his interrogation.

He answered fully all questions concerning his own acknowledged membership in the Communist Party between the years 1935 and 1948 and made it entirely clear to the committee that all of his activities have been lawful, political activities when engaged in.

He declined, however, to answer any questions which sought the names of persons who have been associated with him in the Communist Party or from which their identity might readily be ascertained.

At his trial, the petitioner took the stand in his own defense; he testified at some length concerning the reasons which had led him to the depths of the depression in 1935 to become a member of the Communist Party.

The fact that his studies in history —

Felix Frankfurter:

How old was he then?

Gerhard P. Van Arkel:

He had just graduated from college, Justice Frankfurter, Harvard incidentally Mr. Justice.

Earl Warren:

In 1935?

Gerhard P. Van Arkel:

In 1935 — well, I believe he graduated in ’34 in the event he was comparatively recently out of college.

He explained that his studies of history had convinced him that third parties had exercised an energizing influence in American political life.

He described at some length or offered to prove his activities within the party which were the usual rather humdrum activities attending public meetings, distributing leaflets, selling copies of the Daily Worker and the rest of it.

He made it clear that his membership in the party had not been clandestine, that it was known to his friends and associates, that he engaged in no conspiratorial activities and that the same was true so far he was aware of those who were associated with him in the party.

Indeed there is, if the Court please, a striking parallel between the reasons for his entering the party and his activities within it and those of (Inaudible) which Your Honors held were insufficient to warn his exclusion from the bar.

He also testified at length concerning his growing disinterest in the party; his eventual dissatisfaction with it and his reasons for leaving the party in 1948, some 8 years prior to the time of his interrogation by the subcommittee.

He was asked at trial to state his reasons for declining to answer the questions which had been put to him and he responded as follows; I read from page 9 of our brief and I omit some portions of his answer.

He said, ?I felt that by I being compelled to answer the questions which I decline to answer that I would be cast in the role of an informer.

Unlike most Americans, I have been brought up to despise and deplore the tattletale, the squealer and the informer.

I felt I would be violating the principles and tenets on which I have been brought up, if I were asked to assume that role.

I felt that I knew that I have engaged only during the period of Communist Party membership only in lawful activity.

I knew that my associates had engaged only during the period on Communist Party membership only in lawful activity.

I felt that as a result of what I knew to be the case, that if I were to name names to be an informer, that the result would be terrible trouble on the shoulders and the heads of people to were as innocent as I of any wrongdoing.

I was confirmed in this belief by the fact that I knew my own knowledge of people who had lost jobs, whose careers have been wrecked; whose families have been upset, whose children have been dislocated purely because I have been exposed to the committee by somebody for what in its own time had been perfectly legal activity.

Gerhard P. Van Arkel:

And I felt that it would be a mean and ignoble thing if I would be defective; an agent to bring destruction on people.

I knew that of course it would be possible to save my own skin by giving the committee what it was pressing me for; namely the names of other people, but I felt that I couldn’t in all conscience do this because it seemed to me that one of the great heritages and privileges that I had as a citizen in a democracy was that of personal responsibility for my acts.

I felt certain as a matter of inner conscience here, that I could not disclose the names of innocent people in order to be a possible benefit to myself.

I realize that as a result, I would undoubtedly have to stay on trial for contempt.

The likelihood arose of going to jail which I am not anxious to do, but I’m here less anxious sir to become in my own eyes an ignominious person and I feel deeply that I would utterly lose my self-respect were I to violate the terms of my own inner integrity.?

What was the sentence?

Gerhard P. Van Arkel:

A suspended sentence of 6 months in prison with $500.00 Your Honor.

Now if the Court please, I should like to leave the numerous legal issues which are raised by this case to our brief in order to discuss it solely in terms of the balancing test.

Potter Stewart:

The statement that you just read was made by this petitioner at his trial?

Gerhard P. Van Arkel:

At his trial Your Honor; he took the stand and testified and I read his testimony at the trial.

Felix Frankfurter:

Did he take similar ground before the committee?

Gerhard P. Van Arkel:

Yes, he did Your Honor.

He couched it in terms of the authority of the committee and in terms of pertinency of the questions but he made it entirely clear that would and he did answer all questions except those which sought the names of his associates or information from which they could be identified and it is clear enough that this is the line which he drew at the time of his appearance —

Felix Frankfurter:

I understand that.

Did he state to the committee he’s scrupulous against —

Gerhard P. Van Arkel:

He did Your Honor —

Felix Frankfurter:

— making the line, not merely the legal grounds but the —

Gerhard P. Van Arkel:

He did Your Honor; he did

Felix Frankfurter:

Do we have that from the record here?

Is it in this blue thing?

Gerhard P. Van Arkel:

It’s one in the blue thing Your Honor.

Felix Frankfurter:

What appeared before the Senate Committee?

Gerhard P. Van Arkel:

Oh yes Your Honor.

It’s summarized —

Felix Frankfurter:

I’m not questioning it, I just want to look at it.

Gerhard P. Van Arkel:

Yes.

Your Honor will find that the language of the letter which he presented to the committee, the important sections of it are set out at page 21 of the record which you have there.

Felix Frankfurter:

The blue thing.

Gerhard P. Van Arkel:

That blue thing; that is right Your Honor.

Felix Frankfurter:

What page is it on?

Gerhard P. Van Arkel:

At page 21.

Felix Frankfurter:

Thank you very much.

Gerhard P. Van Arkel:

Now at the outset of applying the Barenblatt balancing test, we’re faced with a serious problem which has plagued this case from its very inception and that is that to know what the subject under inquiry was.

We have appended to our brief as Appendix A, a tabulation which shows what the subjects under inquiry in this case and its companion cases was asserted to be at various stages of this inquiry.

And Your Honors will readily see from that the other confusion and inconsistency which has followed this issue through this case.

This served to emphasize Mr. Fanelli’s argument that unless the subject under inquiry is clearly stated in the indictment, the government is free at each and every stage of the case to change its position with respect to what the subject under inquiry was.

For the purposes of my argument here, I will assume that the subject under inquiry was that which the government now asserts it to be, noting that they have changed their positions since they filed their brief in opposition to certiorari and I will say only that which they now define as communist activities in news media.

Did he make a pertinency objection before?

Gerhard P. Van Arkel:

He did Your Honor, not only at the outset of the hearing but repeatedly.

If you’ll look at page 4, page 7, Footnote 4 of our reply brief, you will find summarized there the numerous record citations to his objections on the ground of pertinency.

Now, as I say, I should like to contrast the fragility of the government’s interest in getting answers to the questions which you asked with the urgent and impelling reasons of personal privacy which lead the petitioner to decline to answer these questions.

At the question under inquiry genuinely been the communist activities in news media.

The obviously pertinent question to have asked the petitioner would have been, ?Do you have any present knowledge concerning communist activities in news media??

Since this was not a question which sought the identity of others and since the petitioner had left the Communist Party some eight years before, the answer to that question would almost certainly have been, no.

Or the committee might have inquired, do you have any information about communist activities in news media since the passage of the Internal Security Act of 1950, the administration and enforcement of which it is one of the duties of the committee to investigate.

Again the petitioner would almost certainly have answered that question, ?no?; and what is significant about this case is that nothing which even remotely approaches those two possibly pertinent questions were put to him.

On the contrary, the committee promptly rummaged around in ancient history.

The first question they asked him which he declined to answer related in 1938, 18 years prior to this inquiry, and the most recent question which he declined to answer related to 1948, 8 years before the inquiry.

Now, we suggest to this temporal remoteness and which we would acquaint with these spatial remoteness on which Your Honor relied in Deutch, has in this case a certain special significance.

It might properly be said I think that 1950 marks a kind of watershed in the public and official attitude toward the Communist Party.

Prior to that time it was by and large regarded as another lawful political party.

In that year, this Internal Security Act was adopted, in that year Your Honors has decided American Communications Association against Douds and it was in that year that Korean hostilities erupted.

So we say that for the purposes of the Barenblatt balancing test, questions which relate to years prior to the 1950 must weigh much less in the scale than activities engaged in subsequent to that time.

Obviously, activities engaged in during this period will have far less impact on the national security than activities engaged in since not only because they are more remote in time, but also because they differ importantly with the three.

And we think it is important that all of the questions asked related to lawful political activity.

Now I’m of course aware that Your Honors have held that law — inquiry in the lawful political activities on the part of these committees is proper, but Your Honors have not held to my knowledge that this is not a relevant consideration to bear in mind for the purposes of accomplishing the balancing test in Barenblatt, that is to say obviously there is a significant difference I would suggest in the standard of pertinency which might properly be applied, in the case of the congressional committee investigating a present plot to blow up the White House and questioning of the kind here involved which seeks only information concerning remote, lawful political activity.

Now, it seems to me that what I’ve said to this point is relevant in judging the petitioner’s private interest, that is to say faced as he was with these questions, I think that he might well feel himself fortified in asserting his reasons of personal privacy by the fact that what the committees sought was remote in time, concerned lawful activity and had — could shed little light on the national security.

But the — I cannot improve on the petitioner’s own statement of the urgent, compelling personal, private reasons which led him to decline to answer these questions.

I would only ask that Your Honors recall that this inquiry took place in 1956.

This was at time when the country was beginning to emerge from that era of our history which for want of a better name we call McCarthyism.

Gerhard P. Van Arkel:

For months, for years prior to this hearing, the public prints have been full of innocent law abiding citizens who had been humiliated, persecuted, vilified sometimes even to the point of suicide and death because I have been revealed before one or another of these committees.

The petitioner’s fears that his answers to these questions might bring harm to innocent persons were not factitious or contrived notions.

They were headlines of the time and I suggest to Your Honors that if under the Barenblatt balancing test, the desire of a citizen to avoid unjustified harm to innocent people is not a sufficient justification of personal privacy then none will ever be found.

This moral, this epical, this humane, this disinteresting reason for declining to answer, is the most compelling reason that this Court will ever have put before it.

Felix Frankfurter:

Mr. Van Arkel, suppose I agree to your last few remarks, the last statement and applied it in regards to questioning in a court of law at a trial, (Inaudible) in a trial in this Court, these questions would otherwise be relevant and suppose that dealing first by (Inaudible) ethics you just made, you came up in federal court, I would say, well the judge in his discretion ought not to rely on these questions, assume — assuming (Inaudible) I haven’t that freedom or power with reference to inquiring before a congressional committee or have I or not in order to yield to your argument say, must I conclude, that putting these questions, whatever I may think of the ethical offensiveness, putting these questions were not outside the constitutional power of Congress.

Gerhard P. Van Arkel:

Your Honor —

Felix Frankfurter:

Have I put my problem —

Gerhard P. Van Arkel:

I trust, I understand that Your Honor and I can only say that as counsel, I feel bound by the previous announcements of this Court which it seems to me have clearly phrased this problem in terms of accomplishing a balancing between the public interest that was to be served; the national security, if that was affected; and the individual’s reason for asserting his personal privacy.

Now, this it seems to me, if this is the true test of Mrs. Barenblatt, as I read it, then Your Honor I think it becomes impossible to generalize to without knowing all the facts which surround the case that Your Honor puts.

Felix Frankfurter:

Well the case that I put to you namely reviewing a conviction in a District Court affirmed by the Court of Appeals also involves the (Voice Overlap) but what I am putting you it’s a different kind of value in reviewing the conduct ex-trial of a federal district judge for a suit affirmed by Court of Appeals, I can say that a judge who has large dis — considerable discretion at least an undefined amount of discretion in conducting a trial in which evidence though relevant admissible ought not in fairness because of the motion that it arouses, the misguidance it gives to the jury et cetera, et cetera, as a matter of discretion, you should have shut that out, but what I want to know is when it comes to dealing with the thing kind of questions or in pursuit for the same questions before a committee of Congress, I have that much that kind of freedom in balancing, do I?

Gerhard P. Van Arkel:

I suggest to Your Honor that you have and I suggest that you have this discretion by a commitment from the Congress.

The Congress which as the discussion this morning brought out might have punished directly for contempt has entrusted that power to the federal judiciary and then doing so the Congress has imposed certain restraints on itself which are expressed in the statute.

The committee must be authorized, the questions must be pertinent.

There is, Your Honor, no question of limiting the Congress in its power of investigation.

Obviously, the Congress does not want unauthorized investigations going on.

The Congress does not want impertinent questions asked and it said so in statute.

Felix Frankfurter:

But do you go with me in the distinction that I — that I indicated this morning; namely, you go with me with the distinction or do you say rather that you take the distinction that in my question I rejected, namely, if Mr. Whitman have been brought before the bar — was it the House or the Senate?

Gerhard P. Van Arkel:

Yes, Senate Committee, Your Honor.

Felix Frankfurter:

If Whitman has been brought before the bar of the Senate, on a report by the Chairman of the particular committee that found him in contempt and the Senate had then exercising its power, implied powers to be in contempt before the Senate, itself dealt with this problem and gave the man the same sentence, it was authorized to give the same sentence $500.00 and six months and then he sought out habeas corpus, your argument implies that it would have been my duty, assuming you’re advising me, it would have been my duty if it is my duty to reverse this, it would have been my duty to say habeas corpus proper.

Is that right?

Gerhard P. Van Arkel:

Your Honor, I suggest that there’s an important distinction to be drawn here.

Felix Frankfurter:

Please draw it.

Gerhard P. Van Arkel:

In the case — in the Kilbourn against Thompson situation where you were dealing with habeas corpus, you are dealing with a particular exercise of congressional discretion in the particular manner and I assume that Your Honors would respect that exercise of discretion.

In this case, you are dealing with a prosecution brought under a statute which the Congress has adopted in which the Congress has fixed the standards to be applied by the federal judiciary, where the discretion is were not to be exercised by the Congress, but under the very terms of itself, is to be exercised by the federal judiciary.

Felix Frankfurter:

But I suggested to you our reviewing power overruling in the District Court will not require disagreement on the score of the provision of the Constitution, but namely they go out power as supervisors of the lower federal courts.

And I further suggest to you, or rather recall to you, that which I have no doubt you know, that in the MacCracken case, it was made specifically clear by Mr. Justice Brandeis writing for an unanimous court that the reason for the 1857 Act under which this prosecution is brought, it didn’t have to do with any of these things, the reason was in order to permit heavier sentences by virtue of the fact that the power of a congressional committee would expire at the end of the session and therefore the punishments would terminate at the end of the session.

And the reason for the Act of 1857 was not an alleviating reason at all, it was an enforcing reason

Gerhard P. Van Arkel:

Well, Your Honor it seems to me there is no inconsistency between those two that Congress might well have felt that it was proper where a person had been genuinely guilty of contempt of Congress that he be given a sentence which would not expire at the end of the congressional term and the Congress, at the same time to say, that we will setup certain restraints on our own action to be enforced through the federal judiciary for our own self protection, namely, we do not wish to have unauthorized committees going around holding hearings.

We do not wish to have congressmen or senators asking impertinent questions.

We ask the aid of the federal judiciary in imposing on ourselves these limitations for the best of possible reasons.

Gerhard P. Van Arkel:

Now, I think that there’s no inconsistency, Your Honor, between those two and to suggest that the Congress was doing nothing but being blind to the interest of the citizen in this case in adopting the statute, I think carries it much too far.

I think the Congress can be credited with the same interest in protecting the constitutional rights of the citizen as this Court is and there is no reason why the Congress cannot seek the aid of the judiciary precisely in protecting the constitutional rights.

Felix Frankfurter:

I don’t want to take your time, but the MacCracken case also makes clear that the same restriction against abuse of constitutional rights limits Congress.

It said it is protected if you have either as in Kilburn and Thompson was found that Congress had no duty and no power or in the later case that it has exceeded it, so that — but that’s —

Gerhard P. Van Arkel:

Well, Your Honor, just have one observation to that question and that is that the Congress has the greatest practical difficulty in enforcing these restraints on itself.

This is a large body.

All kinds of committee sit in all kinds of capacities.

These are legal problems.

They are constitutional problems and I suggest the to you that nothing is more probable than that the Congress specifically desire the aid and counsel of the judiciary in protecting the constitutional rights of the citizen and that it is wrong to suppose that these limitations are limitations which the judiciary puts on the investigating rights of Congress that they are in effect restraints which the Congress has been put on itself and which it seeks the aid of the federal courts and administer.

If Your Honors please, the inquisition has always had an insatiable appetite for names whether it be Torquemada or Titus Oates, Cotton Mather or Savannah Rolla or Lavrenti Beria or Heinrich Himmler, there is an impelling necessity to seek ever longer lists of names because only in this way can may color the pretense that there is a monstrous conspiracy against the state of which they and they alone are the true defendants.

As this lust for names increases, all forms of due process are forgotten.

All questions of guilt or innocence become irrelevant.

All questions of humanity or decent treatment of one citizen by another disappear until finally the child informs on its parents, the student on its professors, the wife on her husband and finally the guilty and the innocent alike walk to the state or the scaffold or to the tumbrel or to the death chamber.

And it precisely at this point that the citizen standing up and saying, I acknowledge my responsibility for my acts.

I will answer for myself and what you wish to know of me you shall learn, but I will not become an accomplice in your desire.

It is at this point that the dramatic clash between the felt needs of the inquisition and the ethical, the moral, the religious impulse of the citizen rise to their dramatic climax.

And it is precisely at that point that the determination must be made as it has always been made whether or not the net of suspicion shall be thrown ever wider, drawing in successively larger numbers of the innocent with the guilty or whether or not the line of inquiry shall be held within the bounds of a civilized and orderly society.

I urge that Your Honors draw that line in this case by reversing the judgment below.

Thank you.

Earl Warren:

Mr. Doolittle.

J. William Doolittle, Jr.:

Mr. Chief Justice, may it please the Court.

The petitioner in this case has raised a substantial number of issues for consideration by the Court, some of them presenting very broad constitutional questions.

However, it is not necessary for the Court to reach all of these questions and particularly the constitutional questions in order to decide this case completely.

The petitioner was convicted on 19 counts; not all of the questions that he raises go to all of the counts since he was given a general sentence and a fine at all 19 counts it was less than the maximum authorized by 2 U.S.C. 192, for any one count, the judgment below must be affirmed if any one of the counts is valid.

Under the circumstances of course, it is only proper that we consider or at least that we begin our consideration with the count or counts as to which the petitioner raises the fewest questions.

Therefore, while the government does contend that all of the counts are valid but except for counts 3, 4 and 5, as to which we agree that the questions were in fact answered, I should like to focus at the outset of —

Hugo L. Black:

Do you agree — do you agree that he was indicted?

J. William Doolittle, Jr.:

I’m sorry sir

Hugo L. Black:

Do you agree that he was indicted for refusing to answer three questions to be answered?

J. William Doolittle, Jr.:

Yes sir.

J. William Doolittle, Jr.:

I should like to focus at the outset of my argument on count 7.

Mr. Whitman had testified that he was connected with a communist unit in the New York Herald Tribune and that appears on page 1742 to 43 of the hearings and he declined to name, he then declined to name any persons who were members of that unit when he was a member and that is the basis for count 6.

Then he was asked the question on which count 7 is based.

?Now the members that you’re associated with in the cell, do you know whether any of them are still employed by the Herald Tribune??

Now, let us first put to one side to the moment, the questions that that — the issues that that question does not raise?

First, that question does not involve petitioners and the amicus contention that the first amendment protects a witness from having to disclose the names of persons with whom he has associated.

The question called for no names and considering the size of the staff of the New York Herald Tribune which petitioner indicated in the hearings was a couple of, a couple of hundred perhaps exclusive of mechanical, that’s at 1742 of the hearings and further since he had disclosed to the committee any of the names of the people in the unit he had been with in 1948, we submit that there is no way in which an answer to the question would have identified the names of any of petitioner’s former associates.

Secondly, the question does not involve the problem of remoteness in time that that petitioner has argued.

It concerned the persons employed by the New York Herald Tribune at the time of the hearings, that is in 1956.

Now, of course it was linked with the petitioner since his last activities had been in that cell in 1948, but I would like to emphasize in connection with the petitioner’s argument on this point of remoteness that while there may have been what he describes to be a high, a watermark in 1950, that this makes it all the more important for the committees investigating this problem to able to look at information prior to 1950 because this watermark will also determine the time when by and large it became more and more difficult to find anything out of the party’s activities and only by developing the background prior to the time that the party, excuse me, what more and more underground that the committees were able to develop any information at all.

Thirdly, assuming that the question under inquiry was communist infiltration into the press and I shall go into that question in a moment, this question clearly does not involve a pertinency problem since it was plainly pertinent on its face to an inquiry and to communist infiltration in mass communications media and more particularly in the press.

The answer to the question would have contributed importantly to the subcommittee’s knowledge as to the extent of communist infiltration into the newspapers in New York and might well provide a foundation for asking other questions that that petitioner may well have been willing to answer.

For example, if his answer had been in the affirmative, there were still some people in the New York Herald Tribune who had been a member of that cell; questions such as how many of them, what their functions had been in the party, questions such as that might have been asked that is I say petitioner may have been willing to answer and that the amicus for example at page 12 its brief suggest what probably be appropriate since the committee did have a valid interest in determining the extent or at least the numerical extent of infiltration into mass media.

Now, petitioner does raise a number of other contentions that if sustained by this Court will invalidate the petitioner’s conviction on all counts including count 7 which I have been focusing and I’d like to take up these questions.

Broadly speaking, they relate the definition of the subject under inquiry, the pertinence of individual questions to that subject, the authority of the subcommittee to conduct the inquiry, the extent to which petitioner was informed of these matters and certain questions relating to the form of the indictment.

I shall discuss each of these in turn and then with anytime remaining, I shall attempt to cover the points that go to the other counts in the indictment.

Hugo L. Black:

Are you going to discuss the question of balancing that you would put on each side of the scale?

J. William Doolittle, Jr.:

I hope I can get to that point sir.

Hugo L. Black:

I didn’t understand you to list that —

J. William Doolittle, Jr.:

Well that’s implicit — implicit basically in the First Amendment contention.

Hugo L. Black:

Well, I don’t know if it is implicit in any that you add —

J. William Doolittle, Jr.:

I’m sorry sir

Hugo L. Black:

I don’t know the simplicity on any of those you’re suggesting.

J. William Doolittle, Jr.:

Well I’m — what I’m

Hugo L. Black:

I suppose —

J. William Doolittle, Jr.:

What I’m going to do Mr. Justice is to take up the points that must be reached in order to decide this case.

Hugo L. Black:

Must not you — must you not reach that one?

J. William Doolittle, Jr.:

Well, in the context in which it has been raised, we submit that you need not sir because the First Amendment point that he makes that is as to whether or not the individual has to disclose names of other persons are not raised by all of the counts in the indictment and I am taking up at this point, one of the counts that did not involve that point.

I do hope —

Hugo L. Black:

Whether it does or not, you would have to meet the question of balancing, would you not?

J. William Doolittle, Jr.:

Not in the context in which he has raised it, sir.

Hugo L. Black:

But you’d have to meet it if you want to convict him on one of these, would you not, that he has raised the question in the First Amendment.

J. William Doolittle, Jr.:

Yes Mr. Justice Black.

We will contend as I will spell out that on the basis of the circumstances of this case, the balance is clearly drawn in favor of the witness’ having to answer but I certainly course to the extent of that as necessarily in the case of course.

I submit that an objective reading of this record will leave no doubt as to the subject under inquiry by the Senate Internal Security Subcommittee at the hearings at which petitioner appeared.

The subcommittee had for some 11 months, been conducting hearings on strategy and tactics of world communism.

Within that basic framework that on the basis of testimony given by one Winston Burdett who was a newspaper man and broadcaster, the subcommittee undertook to focus more particularly on communist infiltration into news media.

It held 3 days of hearings in January on 1956 at which 18 witnesses appeared; 17 of whom where then or recently have been employed as newsmen and other of whom was a film exhibitor.

At the outset of the hearings on January 4th, the Chairman of the subcommittee announced that the hearings about to commence stemmed from Burdett’s testimony.

That the investigation of communist affiliations that resulted from that testimony disclosed, ?Many who were or are members of the press? and that ?the international communist conspiracy has as one of its primary aims the influencing of public opinion thus carrying on a psychological warfare against the United States and its institutions from inside by methods of penetration.?

Then Senator Hennings said in a statement whose primary purpose was to disavow any attack on the free press to that, ?The committee is interested in the extent and nature of so-called communist infiltration if such exists into any news dispensing agency.?

The Chairman expressed his agreement with Senator Hennings’ statement in its entirety and also disavowed any attack on the free press.

On January 6th, the 3rd day of the hearings and the day on which petitioner appeared, the proceeding is opened with a reading of a telegram from a New York newspaper in which the newspaper stated its agreement with the subcommittee’s efforts to uncover communist infiltration wherever found and the Chairman responded by reaffirming the subcommittee’s purpose to follow up the information concerning infiltration of persons identified as communists into news agencies.

In a course of some remarks by Senator Hennings on that day he said, ?I think no one will quarrel with nor take issue with the fact that this committee has the right to inquire into all efforts or indeed all consummations of efforts of the Communist Party to infiltrate newspapers or other media of communications?.

The subcommittee then called Robert Shelton, the petitioner in number 9; who is employed as a copyreader with the New York Times.

Shelton was questioned primarily on whether or not he had any communist affiliations and about communist infiltration in the typographical union.

The next witness was petitioner, and petitioner concedes that he was present at the beginning of the session that day incidentally.

By and large, the questioning of petitioner, himself, developed the character and duration of his employment by various newspapers, by TASS the Soviet news agency and by various communist front organizations, the nature and activities of the communist units to which the petitioner has been exposed and more particularly of the newspaper cells of the Communist Party to which he belonged and that the relationship of his party membership to his employment with these various newspapers.

One cannot read the testimony of this petitioner and that of the other witnesses in this set of hearings all of whom were in the communications field and all but one of whom were newsmen without becoming convinced that the hearings were in point of fact concerned with precisely what the Chairman announced would be the subject under the inquiry, the strategy and tactics of the communism that’s reflected in communist infiltration into news media.

At petitioner’s trial, the government established that this was the subject under inquiry by introducing the transcript of the hearings into evidence.

In addition, the subcommittee counsel testified that, ?In these particular hearings, we were in an area within the broad area of tactics and strategy within the narrower area of infiltration of mass communications,? that’s at page 31 of the joint appendix And that the investigation was, ?Into the strategy and tactics of world communism of which this mass communications was an offshoot and apportion,? that’s on page 37 of the joint appendix.

Now, there were references as counsel points out on his brief in the testimony of the subcommittee counsel, references to the investigation of communist activities generally but it is clear from the context of those remarks that he was referring to the basic investigation of which these 3-day set of hearings was but a part.

And similar statements by the Assistant United States Attorney are plain and can be explained in the same way where the rest of the transcript indicates clearly that he understood the subject under inquiry to be what I have said that it is.

For example, at page 34 of the joint appendix, he said, ?You were indeed though inquiring were you not into mass communications infiltration by communists??

And at page 37, his question was in this particular investigation in mass communications and generally in the tactics and strategy of world communism, was that commenced before or after the passage of the rule in 1955?

Do you take issue with Mr. Van Arkel statement would be made an adequate objection on the pertinency?

J. William Doolittle, Jr.:

We do, Your Honor and I’ll get to that in just a moment.

Contrary to the representations that petitioner has made in this appendix to his brief, the Court of Appeals did identify and affirm the subject under inquiry to be precisely as I have described it.

The court by specific reference and that’s at page 2 of the printed record found the subject under inquiry to be the same as it had found in the Shelton case.

In the Shelton case, its statement was, ?the broad subject matter of Communist Party infiltration and subversion and narrower subject of efforts to influence American public opinion and the specific effort to use the press to implement these objectives; that’s at page 238 in the Shelton record.

J. William Doolittle, Jr.:

And then in its opinion in this case, the court below went on to find that certain other questions including count 7 which I have been discussing, ?were clearly pertinent to an investigation of subversive activities as manifested by the organization of members of the press into Communist Party cells in the period following World War II? and that’s at page 3 of the record.

I submit that there is no basis for any doubt as to the subject that the subcommittee had under inquiry when it was questioning petitioner nor as the Court of Appeals found is there any possible doubt as to the pertinency of some at least of the questions petitioner refused to answer, the first eight of which were pertinent on their face to the subject of communist infiltration into news media.

Now, petitioner contends that even if the subject under inquiry was as I have described it, he was not apprised to the subject or on the pertinency of the questions to that subject.

In the first place, this contention is not open to the petitioner since he did not raise the issue of pertinency or the scope of the subject under inquiry at the hearing when the subcommittee could have corrected any deficiency in this regard that might have existed.

The general objection that the petitioner made to the authority of the subcommittee appears at page 1733 of the hearings and we submit that it is significantly less precise then the one that was involved in the Barenblatt case in which this Court held was insufficient to raise the question of pertinency.

All the statement that petitioner had in the hearings did was to raise in a general way the First Amendment point that counsel has argued here and that is that he was not obligated by the First Amendment to answer questions concerning other persons, but the — as an objection to pertinency, we feel certain that under both Barenblatt and Deutch it was completely inadequate to express that point.

In any event, however, petitioner was plainly apprised both of the nature of the subject matter and of the pertinency of the questions to subject matter.

He was present at the start of the hearings on January 6th when he heard both the Chairman and Senator Hennings to make statements I’ve already referred to identifying the subject under inquiry as communist infiltration into news media.

He heard the witness ahead of him, a newsman, questioned on this subject.

His own prepared statement, the one I referred to at page 1733 in the hearings reflects his understanding that infiltration of the press was the subject under inquiry.

He ascribed the investigation as being, ?with reference to the beliefs, associations and activities of individuals, who are or have been connected with newspapers.

Here as in Barenblatt and — and precisely the same reasons as in Barenblatt, the witness was plainly aware of the subject under inquiry and since a number of the questions including that involved in count 7, were pertinent on their face to the question of communist infiltration into the press, petitioner must be held to have been aware of their pertinency.

Earl Warren:

We’ll recess now Mr. —